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Sheriff's 'frivolous' appeal dismissed

Thursday, April 29, 2010Crain's Chicago Businessby John Flynn Rooney

The Cook County sheriff pursued a frivolous
appeal as a delaying tactic in a case where jurors found that jail
officers subjected inmates to unreasonable strip searches over a
two-year period, a federal appeals court has ruled.

The 7th U.S.
Circuit Court of Appeals panel on Wednesday dismissed an interlocutory
appeal of a trial court's ruling that Sheriff Thomas
J. Dart is not immune from any liability under the 11th Amendment.

"This
appeal is substantivelyfrivolous," Chief Judge Frank
H. Easterbrook wrote for the three-judge panel in Wednesday's
decision. "It is nothing but a delaying tactic and deserves to be
swiftly squelched."

The underlying class-action lawsuit challenged
the manner in which prisoners were searched at intake. U.S. District
Judge Matthew
F. Kennelly presides over the class-action case.

In a ruling
issued in September 2009, Kennelly declined to stay the proceedings in
the lawsuit while Dart pursued the interlocutory appeal.

Dart
asserted that a provision of the Illinois Administrative Code allegedly
requiring that incoming prisoners be strip-searched transforms the
county jailers who conduct those searches — as well as county officials
who order them — into state actors.

As state actors, jailers and
officials are protected from those claims that the manner in which the
intake searches were conducted at the Cook County Jail from February
2007 to March 2009 violated the Constitution, Dart argued.

But
Kennelly rejected that argument when Dart raised it at the end of trial.

The
jury went on to return a verdict finding that the rights of the
prisoners were violated by the manner in which the strip searches were
performed.

In Kennelly's opinion issued last fall denying Dart's
request for a stay, Kennelly described the sheriff's interlocutory
appeal on the immunity issue frivolous.

The appeals court panel
also rejected Dart's assertions about the state's Administrative Code.

"The
sheriff is responsible for his own policies — and as a state actor (but
not himself 'the state') for any unconstitutional policies that
Illinois has directed him to implement," Easterbrook wrote for the
panel. "This interlocutory appeal is dismissed because it is not from a
'final decision' and because it is frivolous. Any remaining arguments
are open to review on appeal from this decision."